Friday, September 29, 2006

This decision from the federal district court in Kansas is over a month old now, but I just learned about it, so it's news to me.

Eric Butler put off his plans to play college football when his girlfriend became pregnant in 2001. He eventually ended up playing one season (fall 2003) at Avila University and another (fall 2005) at Kansas University. He would still be playing at Kansas in this, his senior year, but his NCAA eligibility (five years) expired in July 2006.

Butler unsuccessfully petitioned the NCAA for a waiver, and then filed suit under Title IX. He arged that under NCAA bylaws, an institution can grant a one-year extension of the five-year eligibility “for a female student-athlete for reasons of pregnancy.” If mothers are eligible for a waiver, so to should fathers, he reasoned. But the district court sided with the NCAA, which interpreted “for reasons of pregnancy,” as compensatory for the biological inconvenience of physical pregnancy rather than that of parenting. (The court cited Johnson v. University of Iowa, a 2005 decision from the 8th Circuit upholding the university's parental leave policy, which was more generous to female employees, as a nondiscriminatory accommodation of pregnancy.)

In my opinion, the NCAA should broaden its interpretation of the waiver criteria. The waiver only extends eligibility for one extra year, so its not as if guys are going to watch their kids grow up and then try to get back into college football. Also, the NCAA doesn't need to worry that guys will make false claims of fatherhood just to take advantage of the waiver --- paternity is pretty easy to prove these days. The only risk I can see is that actual biological fathers who aren't geuininely "parenting" might use his partner's pregnancy as a pretext for some other, nonsanctioned reason he might have to take a year off from his sport. But even if this were a real risk, it's better than the existing harm to guys like Butler who are trying to do the right thing by regarding parenting as an equal responsibility for men and women.

A follow-up to the post on September 18 regarding the National Academy of Sciences' report that women pursuing academic careers in the science and engineering fields suffered from gender discrimination in hiring, support and promotion (and that more enforcement of regulations such as Title IX was necessary to begin addressing the issue): more media attention has been given to this report, in the form of an op-ed piece by New York Times columnist John Tierney (subscription required), entitled "Academy of P.C. Sciences."

Essentially, Tierney dismisses the findings of the National Academy as a triumph of politics over hard science on three grounds:(1) The expert panel was made up of mostly women, with one male panel member, who Tierney assumes has been appointed because he agreed that with the panel's "pre-ordained conclusion." The view that an expert panel comprised primarily of women is unable to produce an objective report on issues dealing with gender is utterly patronizing. Frankly, if society chose to disregard every report or commentary on gender issues that was authored primarily or only by men, we would all be doing a lot less reading (Tierney's column included).(2) There is some data that show that when a woman is up for tenure, she has similar odds to a man of being approved. Tierney doesn't cite conflicting data, nor does he address the other concerns of the panel, namely issues surrounding hiring, support and (non-tenure) promotion.(3) Some studies have shown that boys and girls in high school who excel in math and science courses tend to be interested in different career fields, with boys gravitating toward "abstract theoretical pursuits" and girls generally showing more interest in fields that involve "social values" and "people contact." There are certainly many scholars and commentators who believe that inherent gender differences play some role in this decision-making process, but how that translates into Tierney's wholesale dismissal of the reports findings, which involve not only what fields women are interested in, but how women are treated once they pursue a career in that field, is inexplicable.

Last year, the anti-Title IX College Sports Council sued the Department of Education in order to challenge the constitutionality of the Department's "three part test" (which we've described here) as well the test's consistency with Title IX. The CSC also petitioned the Department to issue a new rule that would repeal the three-part test, and are appealing the Department's denial of that petition in the federal courts.

As for the direct challenge to the three-part test, the court held it had already affirmed the regulation's constitutionality and consistency with Title IX in its decision in National Westling Coaches' Association v. Department of Education. That decision not only has precedential, "stare decisis" effect on future similar cases like CSC's, the doctrine of res judicata also barred the members of the NCWA from joining the CSC's lawsuit and raising the same argument again, as five of the seven CSC litigants apparently did.

But as for the appeal of the Department's decision to deny the petition for rulemaking, the D.C. Circuit reversed the lower court's decision that the CSC had no standing and remanded the case back down to the lower court. There a federal judge will have to decide whether the Department was within its rights to decide not to initiate a rulemaking at CSC's request. But even with the remand, the CSC is not likely to prevail. As the D.C. Circuit noted, the district's court's review is “extremely limited” and “highly deferential,” and that "an agency’s decision not to initiate rulemaking will be overturned 'only in the rarest and most compelling of circumstances.'" An agency's decision to reject a petition for a rulemaking that would repeal a policy that has been relied on for 27 years and which has been repeatedly upheld by federal courts is not likely to count as rare and compelling.

Tuesday, September 26, 2006

This is the first post of some undetermined number that will discuss some of the articles from the most recent issue of The Scholar and Feminist Online that is devoted to women's sport and culture.

When the e-journal The Scholar and Feminist Online came out with their latest issue last week I was very excited because it was devoted to women, sport and culture. When I read the title of the keynote address by Catharine Stimpson that inspired the issue, I was ecstatic.The Atalanta Syndrome: Women, Sports and Cultural Values is an excellent piece of scholarship that succintly and intelligently (while remaining very accessible) addresses the major issues in women's sports and the historical and current conflict between feminism and sport.

Stimpson incorporates a healthy amount of memoir regarding her own athletic endeavors and her immerson in feminism which provides a frame for two critical issues: sport and its (in)ability to overcome gender norms; and the role of feminism in sport.

The issue is entitled The Cultural Value of Sport: Title IX and Beyond. And so Title IX here serves in part as an historical marker. The articles all address issues in women's sports in what has been deemed the post-Title IX era (I always am a little nervous about that phraseology because I think in "post" there is an implication that we no longer need Title IX rather than it simply being a signifyer of time). So some of the articles do not extensively address Title IX but in any discussion of the current state of American women's sport the value of Title IX is implicit.And Stimpson acknowledges this value in her address.

But Stimpson's first contribution is the naming of the conflict in which women athletes are engaged. The Atalanta Syndrome is "a cultural illness in which women are vulnerable and devalued." The term comes, of course, from the Greek mythological figure Atalanta who, though strong and swift and intelligent, was forced to conform to societal pressure (in the form of her father in the story) and marry.

The Atalanta Syndrome is something many scholars have been talking about, without naming it as such. "Conformity to the prevailing rules of femininity" explains many of the limitations on and conflicts for female athletes. The examples are numerous in the speech and many of us can probably add more than we want to to the list.

Stimpson's other contribution, and indeed it is the contribution that the whole issue focuses on, is a discussion of the intersection of feminism and athletics. Other contributors take up more narrow aspects of this intersection but Stimpson offers the grounding for these with an explanation of radical and liberal feminism in the 1970s and the historical uneasiness among feminists in embracing sport because of its ties to war, violence, and masculinity.Despite this, Title IX, which comes from a liberal feminist tradition, has increased women's particiaption in sports incrementally, Stimpson notes. But also it has created a shift in the version of Atalanta embodied by contemporary female athletes.

Though there is general public support for Title IX (despite its many "near-death experiences") Stimpson says that increased visibility alongside traditional gender norms has resulted in the overtly sexualized Atalanta and an even greater pressure for conformity to traditional conceptions of womanhood.

There is much more to Stimpson's speech that I cannot summarize here but is very much worth reading for its discussion of historical factors that have shaped female athletes as well as shifts in technology and ideology that construct today's version of the female athlete.

Monday, September 25, 2006

If you're a Title IX enthusiast and you happen to be in the listening area of Valley Free Radio (WXOJ-LP, 103.3 FM, Northampton, Massachusetts) at noon tomorrow (Tuesday), tune in to "Swimming with Sharks," a law and policy talk show hosted by our adroit colleague/neighbor Bill Childs. I will be joining him on the air to plug the Coach Jackson program mentioned earlier and, more generally, the subject of Title IX enforcement.

We here at Western New England College are "wicked psyched" -- as we say in Mass. -- for an upcoming visit from Coach Roderick Jackson, who is speaking on campus next Thursday (stay tuned to Title IX blog for updates and coverage). Yes that's the Coach Jackson, also known as the plaintiff who sued the Birmingham School District after he was removed from his coaching position for challenging his school's lack of support for the girls' basketball team. The case made its way to the Supreme Court and resulted in an important decision affirming that Title IX protected whistleblowers like Jackson against discrimination.

The Jackson decision is already having an effect on Title IX caselaw. Last month, the Third Circuit Court of Appeals invoked Jackson in its decision to reinstate Title IX claims by Lafayette College AD Eva Atkinson against her former institution, which she maintains terminated her employment after she made gender equity a budgetary priorty.

The Third Circuit decision also made clear that protection against retaliation for insisting that one's employer treat female students equitably was a claim squarely in the realm of Title IX -- and not a case of direct gender discrimination that would be actionable under Title VII (statute prohibiting employers from discriminating against employers on the basis of their sex). The court reasoned that Lafayette College's decision to terminate Atkinson had nothing to do with Atkinson's sex, but Atkinson's insistence that the school correct discrimination against certain students as a result of their sex.

First, it bears noting that neither the statute nor the implementing regulations that govern athletics say anything about cutting sports--only that men and women have an equal opportunity to participate in athletics. All too often, however, schools face financial burdens that have nothing to do with Title IX, which force them to scale back athletic programs. When this happens, Title IX has something to say about which sports get cut and which sports don't.

University athletic programs can satisfy Title IX in one of three ways. First, they can ensure that the distribution of athletic opportunties is proportional to the gender breakdown of the student body. In other words, if the student body is 55% female and 45% male, close to 55% of the athletic opportunities must go to women. Or, second, they can show continuing progress in expanding opportunities in women's sports. Or, third, they can show that they are meeting the interests and abilities of all the women students who want to play sports.

These three options operate to immunize women's sports from cuts unless the athletic program satisfies the proportionality option after the cuts are made. The reason: cutting an existing women's team automatically makes a school ineligible for compliance under the second or third option. It is the exact opposite of expanding opportunities (so no compliance under number 2) and it automatically means there are women--players on the eliminated team--whose interests and abilities are not being met (and there goes number 3).

Every federal court that has been asked has affirmed this interpretation of the regs. See, e.g., Cohen v. Brown; Neal v. Board of Trustees; Roberts v. Colorado State Board of Agriculture. Because logically, it makes sense. If you have to shrink the pie, you shouldn't be able to take away from the person who already has a smaller piece.

In Missouri State's case, the decision to cut women's tennis along with four men's sports (indoor indoor track, outdoor track, cross country, and tennis) resulted in a proportionate distribution of athletic opportunties. So it was probably OK. I think both parties must have valued the plaintiffs' chance of winning as rather small because the settlement amount was $1000 per plaintiff, or $4000.

This isn't to say that athletic cuts aren't sad. Tragic even--for any sport, men's or women's. But all to frequently Title IX is vilified for putting men's sports on the chopping block. If there's any silver lining to the Missouri State case, maybe it's to serve as a reminder of the neutrality of the equal treatment principle: when opportunities for men's and women's sports are equally allocated, they are equally vulnerable. Sad, but fair.

On a related note to the post on single-sex classrooms, the New York Times reports today on the trend of small women's colleges across the U.S. going co-ed or merging with co-ed institutions because of financial strains that the women's colleges are facing. The Times article focuses on the decision of Randoph-Macon Woman's College in Virginia to admit men beginning next year, noting that other colleges, including Regis College near Boston and Wells College in upstate New York, made similar decisions in recent years. Douglass College, which is part of Rutgers, will cease to become a separate degree-granting institution after this academic year, following similar decisions by Tulane and Fordham.

The article cites several reasons for the decline in enrollment of women's colleges. Among them are the fact that prestigious universities that had previously been all-male began admitting women, and that Title IX provided the enforcement mechanism to make sure that women who attended co-ed universities were being supported in the academic and athletic settings there.

It's an interesting, not altogether surprising, yet sad effect of Title IX -- that the empowerment of women in the co-educational setting has contributed to a decline in the interest level of women to attend women's colleges.

Wednesday, September 20, 2006

Stateline.org is reporting that we can soon expect the Department of Education to implement proposed revisions to the Title IX regulations that would allow schools to experiment more liberally with single-sex classrooms. Currently, the regulations implementing Title IX's requirement of gender inclusive classrooms allow only phys ed and sex ed classes to exclude students on the basis on sex. But the 2001 statute known as No Child Left Behind permits schools to use their federal funding to experiment with single-sex classrooms in other contexts, so the Department of Education points out that regulatory change is a therefore in order.

Proponets of single-sex education argue that schools should have the freedom to experiment with curricular techniques in order to find new ways of maximizing school's overall effectiveness. But experimenting with single-sex classrooms, however, risks that schools will rely on stereotypes about how all girls learn and how all boys learn to determine how classes should being taught. If a teacher believes that "girls learn better sitting" and "boys learn better moving," (as proposed by the National Association for Single Sex Public Education) that teacher might structure classes so that girls learn while sitting and boys learn while moving. Too bad for the girl who likes to move and the boy who likes to sit and think things through. (Doesn't everybody know someone like this?)

If single-sex classrooms become a regulatory exception to Title IX, schools are going to have to carefully filter the trendy rhetoric and "popular science" about the victimhood of boys. Stateline's article links to a comprehensive report by nonpartisan policy think-tank Education Sector. Titled "The Evidence Suggests Otherwise: The Truth About Boys and Girls," this report suggests that people are confusing girls' improvement with boys' failure. In reality, boys' academic performance has, in absolute terms, been improving in most areas and holding steady in others. Even measuring boys' improvement in relative terms, the report finds no radical or recent decline in boys’ performance as compared to girls'. And the report dispells any sort of tendency to genderalize, stating, "Nor is there a clear overall trend—boys score higher in some areas, girls in others."

In light of this reality, it behooves schools in the new regulatory regime to experiment cautiously. The Feminist Majority Foundation's Education Equity Director, Sue Klein, offers specific suggestions on how to reduce some of the risks of experimenting with sex-segretated classrooms:

Provide notice and opportunity to comment.

Conclude that past gender discrimination remains.

Explain how the single-gender activity is intended to eliminate specific past gender discrimination.

Ensure that the single-gender activity is the exception, not the rule and is not used for administrative convenience such as discipline.

Evaluate to determine when the under-performance ends, so the single-gender treatment ends.

Tuesday, September 19, 2006

What is striking about Phyllis Schlafly's response to the Michigan case (discussed below) is her repeated use of "feminists." Feminism and sport--women's sports--have had a strange relationship over the years. When Schlafly was out campaigning against the feminists in the 1970s, mostly in the form of anti-ERA speeches, Title IX and its proponents (most visibly the AIAW) were waging what seems to be a very separate battle. There was not much crossover between second-wavers and pro-Title IXers.I have always found this curious and disappointing. Because I know that women campaigning for the ERA and participating in other aspects of the movement must have played sports or enagged in recreational sporting activities of some kind. It was the era of the jogging movement after all.And I know that members of the AIAW had very feminist outlooks. Just looking at some of their visions for women's athletics indicates a very feminist influence. (Check out Playing Niceby Mary Jo Festle for the specifics.) Whether they called themselves feminist or not is uncertain. It was likely very dangerous, operating in the male-dominated world of intercollegiate athletics, to be advocating for Title IX and to call oneself a feminist in any kind of public setting. Though to me they seem inseparable, this was not the reality of the situation.The lack of a strong feminist influence on and presence in women's sport has had its consequences, including the precarious position that Title IX occupies in the legal and cultural arenas.I am not sure if Schlafly railed against Title IX in the 1970s while she was out stumping for the patriarchy (I am in the process of researching this) but if she did it I think it would have been quite disconcerting for the "feminists" (i.e. the participants in the second wave) to be told they were supporting Title IX and girls/women playing sports.{If you too have a weird fascination with Phyllis Schlafly you should check out the book Republican Women: Feminism and Conservatism from Suffrage through the Rise of the New Right. She's on the cover and the author does a good job of showing how she came to power well before her anti-ERA days.}

Monday, September 18, 2006

To study the status of women in science and engineering, The National Academy of Sciences commissioned a panel of experts in these fields, which completed its report recently. The panel's findings were that women pursuing careers in science and engineering, particularly in the academic setting, were being hindered by "bias" and "outmoded institutional structures."

The panel noted that although women now account for more than 50% of bachelor's degrees in science and engineering, they account for less than 20% of full-time faculty positions at universities. The percentages for women of color are far more disturbing, as the panel noted their presence to be virtually "non-existent" at many universities. The panel attributed some of the disparities to the difference in expectations of women in academia, and to both subtle and overt discrimination in the hiring, promotion and support of women.

The National Academy's panel offered numerous suggestions for improving the situation, including, among other ideas, that federal enforcement agencies, such as the EEOC, Department of Education, Department of Justice, Department of Labor, and their various civil rights offices, provide the technical guidance necessary to help universities achieve gender balance, investigate complaints promptly, and take measures to make sure that anti-discrimination laws (such as Title IX), are being enforced.

Interestingly, Title IX isn't mentioned by name in the summary of the panel's findings, although it's one of the best-known vehicles to combat sex discrimination in academic settings. Is it possible that Title IX has become synonymous with women and sports, and that people don't (or don't want to) associate it with issues of non-sports-related discrimination at schools and universities?

Feminists are now ruthlessly trying to use Title IX to force public schools to comply with the same outrageous gender quotas as are used in colleges. If feminists succeed, public high schools will have to eliminate 1 million boys from high school sports teams.

Feminists sued the Michigan High School Athletic Association over the issue of whether girls' basketball, volleyball and other sports must be scheduled in the same seasons as the boys. The schedule had called for different seasons in order to maximize the convenient use of limited sports facilities.

But feminists cried discrimination, and they won. It is amazing that judges think they have the authority and the wisdom to decide which seasons high school boys and girls will play which sports.

What Schlafly glosses over in her characterization of MHSAA's decision as one of "conven[ience in the] use of limited sports facilities" is that the boys sports got all of the convenience. It may be true that sports facilities in Michigan are operating at capacity and can't possibly support concurrent girls' and boys' seasons (even though every other state's high schools seem to manage). But year after year, female athletes of several sports got stuck playing in the "off" season, while never once did that happen to the boys. If the season in which sports are played are truly so immaterial, a rotation or a sharing arragement would have been the obvious, simple solution (certainly cheaper than litigation).

It's also disingenuous to characterize the opinion as deciding "which seasons high school boys and girls will play which sports." The court does not micromanage the scheduling of sports. What it does is insist that the scheduling of girls sports as the admitted afterthought to boys' sports was "discrimination on the basis of sex" within the meaning of Title IX.

Friday, September 15, 2006

The Sixth Circuit Court of Appeals decided last month that the Michigan High School Athletic Association's scheduling of several girls sports in the "off season" violated Title IX. Girls basketball in Michigan had been played in the fall, instead of winter, its traditional season. Soccer, volleyball, golf and swimming were also scheduled off season. In addition to many tangible disadvantages -- frozen fields, recruiting challenges, conflict with olympic development and other nonscholastic programs -- the court recognized that the off-season scheduling sent the message that girls sports were second class.

This is not the first time the Sixth Circuit has invalidated the high school sport schedule in Michigan. Two years ago, it held that off-season scheduling of girls' sports violated the Equal Protection Clause, but the Supreme Court vacated that decision because the Sixth Circuit did not consider whether Title IX's statutory remedy precluded Equal Protection relief. Last month's decision not only decided the Title IX issue on the merits, but also said that the potential availability of a remedy under Title IX does not preclude plaintiffs from seeking a remedy under the Equal Protection Clause.

New research by Drs. Heather Barber and Vikki Krane (the former of the University of New Hampshire, our beloved alma mater) [reported on here] documents the negative climate for gays and lesbians in college athletics -- in particular, for coaches, who are frequently the objects of "negative recruiting" by other coaches. Discrimination against coaches is a barometer of a hostile or oppressive climate more generally, including for student-athletes, the researchers say.

Depending on the court and the circumstances of the case, Title IX's protection may extend to discrimination against students on the basis of sexual orientation, on a theory that discriminating against women, but not men, who are attracted to women (or vice versa) is discrimination on the basis of gender. Not all courts accept this theory, however, including, most recently, the 6th Circuit Court of Appeals (in a decision about Title VII, employment law's version of Title IX). As Dr. Barber suggests in the article linked above, one way to fill this potential gap in coverage is for universities to enumerate protection for sexual orientiation and gender identity in their nondiscrimination policies. State and local laws can also be a source of enumerated protection. As for Title IX's applicability in this area, we at Title IX Blog are keeping a close eye on a Title IX lawsuit against Rene Portland, the women's basketball coach at Penn State, who is charged with dismissing a player because of her perceived sexual orientation.

Thursday, September 14, 2006

Yesterday on Morning Edition Frank Deford suggested, somewhat sarcastically, that an unintenteded benefit of Title IX compliance in the area of athletics is that distracting girls with sports would help alleviate the academic gap between boys and girls.